Salary paid to Expats deputed in India engaged by an employer of the other Contracting State is taxable in India and the primary liability to pay tax vests with those expatriate employees working in India. Certain relaxation is provided in the relevant Articles under the head ‘Dependent Personal Services’ wherein the tax liability arises only when the expatriate employee stays in India for not less than 183 days during the previous year.
The Indian Income Tax Act casts a responsibility on the employer of expats irrespective of its residential status to deduct tax at source on the salary paid for expats working in India.
Foreign companies operating in India must deduct TDS (tax deducted at source) even on salaries paid abroad to their expatriate employees for services rendered in India, the Supreme Court has ruled.
Where salary is payable in foreign currency, the amount of tax deducted is to be calculated after converting the salary payable into Indian currency at the telegraphic transfer buying rate as adopted by State Bank of India on the date of deduction of tax (Rule 26) read with Section 192(6).
However, the liability of deducting tax at source is in the nature of vicarious liability, which pre-supposes existence of primary liability. The said liability is a vicarious liability and the principal liability is on the person who is taxable.
When a company in India engages services of OSS Vendor and the OSS vendor deploys its own Support Staff in India they are treated as expatriate/ expats. The responsibility to deduct tax for salary payments to expats is the responsibility of the OSS vendor.
The Indian Company has no responsibility to deduct tax on salary payments made to the expats of the OSS vendor. Further there is no binding contract between the Indian Company and the expats, no payments were made directly by the Indian Company to the expats, hence the Indian Company cannot deduct TDS for the salary payments made by the OSS vendors to the expats engaged by them.
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